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The decision confirms that presence in the jurisdiction at the time of service remains a substantive jurisdictional requirement.
The Court of Appeal has held that the English courts do not have jurisdiction as of right over a sanctioned individual who used to reside in London, continues to own a home there and has expressed a desire to live in that home, but is currently banned from entering the UK for an indefinite period of time: Fridman v Agrofirma Oniks LLC [2026] EWCA Civ 139.
Having considered conflicting Court of Appeal authority on the point, the court concluded that presence within the jurisdiction at the time of service is essential for it to assume jurisdiction as of right over an individual. While presence is a flexible concept and will not be negated by temporary absence from the jurisdiction, the notion of temporary absence "must be kept within relatively narrow bounds". The court considered that the concept of "presence" does not extend to an individual who is legally prevented from returning to the UK for an indefinite period – but left open where the precise boundaries lie.
Where an individual is not present within the jurisdiction in the relevant sense, this decision means that service at their "usual" or "last known" residence will not be sufficient to enable the English courts to exercise jurisdiction over the claim. This is despite the terms of the Civil Procedure Rules (CPR) which suggest that this will be good service.
The decision has practical implications for claims against sanctioned and other individuals who are banned from the UK – and others who are not considered to be "present" within the jurisdiction because their absence is more than merely temporary. Claimants are likely to need to seek permission to serve proceedings on such individuals outside the jurisdiction – which will likely increase costs and result in delays – unless solicitors in the jurisdiction are instructed to accept service.
Interestingly, shortly before the Court of Appeal's decision in this case, the London Circuit Commercial Court held in Li v Yuan [2026] EWHC 242 (Comm) that, in the context of enforcing foreign judgments in England and Wales, it is well established that the judgment debtor's residence in the foreign country at the time proceedings were instituted (even without physical presence) is sufficient to establish that the foreign court had jurisdiction. It remains to be seen whether there is a difference between this test of residence and the broad concept of presence (which is not negated by temporary absence) endorsed by the Court of Appeal in Fridman.
Background
The claimants issued proceedings in February 2024 against the defendant, an "immensely wealthy" Russian individual. The defendant had moved to London in 2013, acquired a property in Hampstead (Athlone House) in 2016 as a residence for himself and his family, and obtained indefinite leave to remain the UK in 2019. However, he was subsequently designated under Russian sanctions regulations and became an "excluded person" under the Immigration Act 1971 meaning that his leave to remain in the UK was cancelled and he is not permitted to enter the UK. The defendant left the UK in September 2023 and currently lives in Moscow.
The claimants purported to serve the claim form (by post and by hand) on the defendant at Athlone House, which he still owns. They also posted and hand delivered the claim form to three alternative addresses: (i) the registered address of a company that managed Athlone House on the defendant behalf, but of which he was neither a director nor shareholder; (ii) the address of the defendant's solicitors (despite their indication that they were not authorised to accept service); and (iii) the address of an investment holding company that appeared to have been founded by the defendant, but of which he was neither a director nor shareholder. While it was accepted that the claim form had been brought to the defendant's attention, he challenged both the validity of service and the court's jurisdiction.
At first instance, the High Court held that the defendant had not ceased to be resident within the jurisdiction despite his designation and status as an "excluded person", meaning that the court could exercise jurisdiction over him pursuant to common law. The court also found that, for the purposes of CPR 6.9, the claimants had a good arguable case that Athlone House was the defendant's "usual residence" when the claim form was served. Even if that was wrong, Athlone House was the defendant's "last known" address and the claimants had unsuccessfully taken reasonable steps to ascertain his current address, so they were entitled to serve the claim form at Athlone House
The defendant appealed, arguing that the common law rule which provides the English courts with jurisdiction as of right is based on the principle that a person present within the jurisdiction has the benefit of the laws of the jurisdiction and must therefore submit to the process of its courts. By contrast, a person who has no right to enter the jurisdiction and is physically residing elsewhere has no right to benefit from the law of the jurisdiction and so is not amenable to the process of its courts. Accordingly, the judge was wrong to hold that the defendant, who had been indefinitely excluded from the UK and could not lawfully reside in the jurisdiction, was present within the jurisdiction for the purposes of service.
The claimants submitted that it was unnecessary for the judge to have found that the defendant was present or resident within the jurisdiction as the common law principle relied on by the defendant had been superseded by the CPR (principally CPR 6.9). If service was effected in accordance with the CPR, that was enough. Satisfaction with the procedural rule was by itself sufficient to satisfy any jurisdictional requirement.
Decision
The Court of Appeal allowed the appeal and held that the defendant had not been validly served. Lewison LJ gave the leading judgment, with which Phillips LJ and Sir Launcelot Henderson agreed.
The relevant legal principles
The common law principle relied on by the defendant had been formulated by Lawrence Collins J in Chellaram v Chellaram (No 2) [2002] EWHC 632 (Ch) as follows:
"...it has always been, and remains, a fundamental rule of English procedure and jurisdiction that a defendant may be served with originating process within the jurisdiction only if he is present in the jurisdiction at the time of service, or deemed service".
Accordingly, the Court of Appeal noted that both presence in England and Wales and due service of process are requirements of jurisdiction (presence rather than residence being the "touchstone" of jurisdiction). As Lord Brightman accepted in Barclays Bank of Swaziland Ltd v Hahn [1989] 1 WLR 506, presence within the jurisdiction is a "substantive jurisdictional requirement".
The court noted that the source of the principle is to be found in international law and territorialism. Consequently, the requirement of presence is not a mere matter of procedure that can be amended or displaced by the CPR. Rather, broad principles of international comity must always be assumed to underlie the rules of court and enactments of Parliament. The CPR must therefore be interpreted against the background of the common law concerning the jurisdiction and powers of the English courts over persons not resident in the UK.
The Court of Appeal accepted that temporary absence (eg being abroad on holiday) does not result in a person not being subject to the jurisdiction. However, it concluded that the concept of temporary absence "must be kept within relatively narrow bounds". In so finding, the Court of Appeal preferred its earlier decision in SSL International Plc v TTK LIG Ltd [2011] EWCA Civ 1170 (considered in this blog post) over its decision in Kamali v City & Country Properties Ltd [2006] EWCA Civ 1879. While the actual results of the two cases appear compatible (in Kamali, service on the defendant's place of business in the UK while he was temporarily abroad was deemed effective whereas in SSL, service in the UK on the director of a foreign company that had no, and had never had any, presence in the jurisdiction was ineffective), the result in Kamali was based on a conclusion that the common law principle had been superseded by the CPR, whereas the court in SSL held that the principle had survived. In the Court of Appeal's view, the decision in Kamali could not stand in light of the earlier House of Lords decision in Barclays Bank.
Conclusion on the facts
Having concluded that presence in the jurisdiction at the date of service is an essential requirement to establish jurisdiction as of right, the Court of Appeal then considered whether the defendant was present at Athlone House at the date of service. Here, the court was not concerned with whether the defendant was physically present (as he plainly was not), but with the wider sense of being present despite temporary absence.
In this respect, the first instance judge had taken into account the defendant's assertion in other proceedings that he intended to return to the UK. The court concluded that the judge had been entitled to take this into account, but that the judge had not (and should have) evaluated the possibility of the defendant putting that intention into effect. The court noted that intention to return must be differentiated from a mere hope or aspiration.
The Court of Appeal concluded that the defendant's enforced and indefinite removal from the UK could not be described as a "temporary" absence. While he may wish to return, whether he can put that wish into effect is out of his control. Not only will he have to await the removal of the designation under sanctions legislation, he will also have to reapply for leave to enter the UK. The state could not, on the one hand, claim jurisdiction over the defendant on the grounds of his presence in England and Wales, and on the other hand deny him the right to be present in the jurisdiction. Accordingly, in "no ordinary sense of the words" could the defendant be said to have been present at Athlone House when the claimants purported to effect service. Regardless of the claimants' compliance with the CPR, therefore, the court did not have jurisdiction as of right over the defendant. If the claimants wished to bring proceedings against him, they would need to obtain permission to serve him outside the jurisdiction.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
